Welborne
and his mother were charged with setting fire to their rented
house and then filing false insurance claims based on the
fire damage. Welborne was convicted of first degree arson,
criminal mischief, theft, and attempted theft. The Court of
Appeals previously rejected his challenges to his convictions
based on Reyna-Abarca v. People, 2017 CO 15. After
this decision, the Colorado Supreme Court clarified
Reyna-Abarca and vacated the Court's judgment
here as to the included offense statute and remanded this
case.

On
appeal, Welborne contended that criminal mischief is an
included offense of first degree arson and, therefore, those
convictions must merge under both statutory and double
jeopardy dictates. Criminal mischief is included in first
degree arson where both offenses are based on the same
conduct. Here, when Welborne knowingly burned the rented
house without the owner's consent, he committed both
criminal mischief and first degree arson. The failure to
merge the convictions was plain error.

The
criminal mischief conviction and sentence were vacated. The
judgment was affirmed in all other respects. The case was
remanded for the trial court to correct the mittimus.

Jompp,
the victim, and an acquaintance, B.B., were driving around
one evening in a stolen car while high on methamphetamine.
After they picked up C.P., they later pulled the vehicle over
and a fight broke out between Jompp and the victim. Jompp,
B.B., and C.P. left the victim unconscious on the ground, and
the victim later died of his injuries. Days later, police
found Jompp. After the police handcuffed Jompp, he took off
running. After a short chase he was caught and taken to jail.
A jury convicted Jompp of third degree assault, robbery, and
escape. The trial court adjudicated Jompp a habitual criminal
and sentenced him to 48 years in prison.

On
appeal, Jompp contended that the court violated his speedy
trial rights by continuing his jury trial, over his
objection, beyond six months after he pleaded not guilty and
13 months after he was arrested. Here, the trial court acted
within its discretion by relying on the prosecution's
offer of proof that they were diligently trying to find B.B.
to secure her testimony at trial and by finding that there
was a reasonable possibility that B.B. would be available to
testify. Therefore, there was sufficient record evidence to
support the court's granting of the prosecution's
request for a continuance. Further, the trial court
didn't plainly err because Jompp's constitutional
right to a speedy trial wasn't obviously violated.

Jompp
also contended that the prosecution presented insufficient
evidence that he committed robbery, as either a principal or
accomplice. Here, after Jompp attacked the victim, B.B. said
she then saw C.P. get out of the car, go over to the victim,
and start digging through his pockets. C.P. admitted that she
went through the victim's pockets to get money at
Jompp's direction and she gave him the money she found.
Further, the Court of Appeals rejected Jompp's argument
that the prosecution had to show that the force he used
against the victim was calculated to take the victim's
money. The record contained sufficient evidence to support
the jury's conclusion beyond a reasonable doubt that
Jompp robbed the victim.

Jompp
next contended that the court erred by failing to instruct
the jury that it could convict him of the lesser non included
offense of resisting arrest. Here, the undisputed record
evidence showed that Jompp was in custody. He had already
submitted to the police officer's instructions, was
handcuffed, searched, and led by the arm to a patrol car for
transport to jail before he ran from the officer. Therefore,
the court didn't abuse its discretion by declining to
instruct the jury on the crime of resisting arrest.

Finally,
Jompp contended that the court convicted him in violation of
his Sixth Amendment right to a jury trial when, at
sentencing, it, not the jury, found that he had prior
convictions and increased his sentence under the habitual
criminal sentencing statute. Jompp failed to preserve this
issue at trial, and the prior conviction exception remains
well-settled law, so the trial court did not err.

Finally,
Jompp contended that his sentence is illegal because his
noncustodial escape conviction can't be deemed a current
offense under the habitual criminal statute. The Court held
that CRS§ 18-1.3-801(5) (2013) precluded a noncustodial
escape conviction from being used as a current conviction for
adjudicating a defendant a habitual criminal under subsection
(2) of that section. Therefore, the trial court erred in
adjudicating Jompp a habitual criminal on his noncustodial
escape conviction.

The
judgment of conviction was affirmed. The part of the sentence
based on Jompp's escape conviction was vacated and the
case was remanded for resentencing on that conviction. The
remainder of the sentence was affirmed.

2018
COA 129. No. 16CA1298. People v. Ramirez. Sexual
Assault on a Child—Sexual Assault on a Child
by One in a Position of Trust— Indecent
Exposure—Intimate
Parts—Semen.

Ramirez
was the victim's foster father. When the victim was 4
years old, Ramirez ordered her and her sister to approach
him. He placed their hands in front of him, pulled down his
pants and underwear, and masturbated. Ramirez ejaculated into
their hands and made them drink the semen. A jury convicted
Ramirez of sexual assault on a child (SAOC), sexual assault
on a child by one in a position of trust (SAOC-POT), and
indecent exposure.

On
appeal, Ramirez contended that there was insufficient
evidence to support the charges of SAOC and SAOC-POT. To
prove the crimes of SAOC and SAOC-POT the prosecution must
prove, beyond a reasonable doubt, that "for the purposes
of sexual arousal, gratification, or abuse" the
defendant knowingly touched the victim's intimate parts
or the victim touched the defendant's intimate parts.
Semen is not an "intimate part" within the meaning
of CRS § 18-3-401(2). Here, the victim testified that
Ramirez never touched any of her "private parts"
and that she never touched his "private parts." The
evidence was insufficient to prove beyond a reasonable doubt
that Ramirez committed SAOC or SAOC-POT.

The
SAOC and SAOC-POT convictions were vacated and the case was
remanded for the trial court to dismiss those charges with
prejudice. The convictions for indecent exposure were
affirmed.

Gwinn
rear-ended another car while driving home from work and was
arrested for driving while under the influence of alcohol
(DUI). Gwinn admitted drinking four beers before the accident
occurred. After a jury convicted Gwinn of DUI and careless
driving, the trial court, in a separate proceeding, found
that Gwinn had three prior DUI convictions, adjudicated him a
felony DUI offender, and sentenced him to 30 months of
probation, two years of work release, and 90 days in the
county jail.

On
appeal, Gwinn first contended that the trial court's
refusal to allow the testimony of eight current and former
Colorado Department of Public Health and Environment (CDPHE)
employees deprived him of his constitutional right to present
a defense. Gwinn sought to introduce this testimony to show
that the Intoxilyzer 9000 breath test machine did not produce
accurate results. The trial court did not err when it granted
CDPHE's motion to quash the witness subpoenas, finding
that the testimony was irrelevant to Gwinn's refusal
because it failed to establish Gwinn's knowledge of the
Intoxilyzer 9000's alleged deficiencies at the time he
refused to submit to chemical testing. Because the accuracy
of the breath test machine was not relevant, Gwinn was not
deprived of the right to present a defense.

Gwinn
next contended that the trial court erroneously permitted the
prosecutor to lead a friendly witness, Officer Perez,
"under the guise of impeachment" where no
impeachment occurred. Because Officer Perez's direct
testimony that Gwinn's speech "sounded...